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GermanyBundesfinanzhof

Dead manager and part-timers count: 21 heads trigger wage-bill test, BFH rules

II R 34/23 of 17 June 2026: the manager employed at death and two part-time cleaners each count one — 21 heads, so the old-law wage-bill test applies to the July 2012 estate.

By Taxxa AI OyPublished 5 November 2026

Tax

Industry: Across industries

The shareholder-manager employed at his death counts toward the old-law headcountBundesfinanzhof, and part-timers countBundesfinanzhof per headBundesfinanzhof. The II. Senat of the Bundesfinanzhof held on 17 June 2026, II R 34/23Bundesfinanzhof Bundesfinanzhof, that the Gesellschafter-Geschäftsführer employed at his death is a Beschäftigter under § 13a Abs. 1 Satz 4 ErbStGBundesfinanzhof in the 22 December 2009 version (ErbStG a.F.), and that Teilzeitbeschäftigte count by headcountBundesfinanzhof because the headcount is independent of the Lohnsumme under § 13a Abs. 4 Satz 1 ErbStG a.F.Bundesfinanzhof, following II R 57/15. Per-head counting does not discriminate against part-timers under Art. 3 Abs. 1 and Abs. 3 Satz 1 GGBundesfinanzhof. The revision against the Finanzgericht Münster judgment of 26 September 2023, 3 K 2466/21 F, was dismissed at the plaintiff's costs.

The plaintiff GmbH's sole shareholder and manager A died in July 2012Bundesfinanzhof; his stake had belonged to his sole-trader business assets. Until his death the company employed 18 full-time staff, A, and two part-time cleaners, W and JBundesfinanzhof, of whom J was a student and W held another part-time job. The heirs transferred the undivided estate by notarial contract of 22 February 2013. The 25 February 2020 notice on the separate uniform determination of starting wage bill and headcount under § 13a Abs. 1a ErbStG a.F. found 21 employees at the July 2012 dateBundesfinanzhof; objection and suit failed and a June 2023 amendment kept 21. The plaintiff argued A's contract ended civilly at death, W and J fell under the § 13a Abs. 4 Satz 1 Halbsatz 2 exception, and alternatively they count at most 0.5 each by analogy to § 23 KSchG.

The old law applied becauseBundesfinanzhof the tax arose with A's death in July 2012 under § 9 Abs. 1 Nr. 1 ErbStGBundesfinanzhof, while the 4 November 2016 reformed minimum-headcount rules reach only acquisitions with tax arising after 30 June 2016 under § 37 Abs. 12 Satz 1 ErbStGBundesfinanzhof. The Bundesverfassungsgericht's 17 December 2014 judgment, 1 BvL 21/12, declared the more-than-20-employee threshold unconstitutionalBundesfinanzhof but ordered its continued applicationBundesfinanzhof.

The 21 figure was correctBundesfinanzhof. Under § 13a Abs. 1 Satz 4 ErbStG a.F. the Lohnsummenprüfung is skipped only with a zero starting wage bill or no more than 20 employeesBundesfinanzhof; the count is taken at the taxation date, here the July 2012 deathBundesfinanzhof. Beschäftigte means persons integrated into the organisation who help perform its tasks, each holding an abstractly preservable job: the provision serves abstract job preservation. A's contract was effective until death ended itBundesfinanzhof, so he countsBundesfinanzhof; that the deceased cannot continue working, unlike a donor, is irrelevant. Part-timers count wholeBundesfinanzhof: the wording admits no quota, whole counting preserves full- and part-time jobs equally and avoids full-time-equivalent complexity. The § 23 KSchG analogy failsBundesfinanzhof: its pro-rating governs only dismissal protectionBundesfinanzhof, and the legislature dropped the KSchG link when raising the exemption from ten to twenty employeesBundesfinanzhof. Pay for staff not predominantly active in the business under § 13a Abs. 4 Satz 1 Halbsatz 2 concerns only wage-bill computation, not headcountBundesfinanzhof, as II R 34/15 held. With A, W and J each counting one, 18 plus 3 makes 21Bundesfinanzhof, so the wage-bill test appliesBundesfinanzhof.

Legal basis is § 13a Abs. 1 Satz 4, Abs. 1a Satz 1 and Abs. 4 Satz 1 ErbStG a.F. and §§ 9 Abs. 1 Nr. 1 and 37 Abs. 12 Satz 1 ErbStG as applied in BFH judgment II R 34/23 of 17 June 2026Bundesfinanzhof.

For pre-July-2016 estates, count the manager employed at death and every part-timer as one head; do not pro-rate under section 23 dismissal-protection law.

Sources

Beschäftigtenanzahl im Sinne des § 13a Abs. 1 Satz 4 ErbStG a.F.